I. Introduction
This paper localizes the United Nations Guiding Principles on Business and Human Rights (UNGPs),Footnote 1 using an Afrocentric norm – Ubuntu. In doing so, this paper demonstrates how a localized interpretation adds to the evolving normative understanding of the UNGPs. The UNGPs contain three pillars: states’ duty to protect human rights, corporate responsibility to respect human rights, and access to remedy for victims in case of harm. The first pillar – the state duty to protect provides that states must protect their citizens against human rights abuse by third parties within their territories, including businesses.Footnote 2 Pillar II, which is the focus of this paper, and elaborated on in section III, provides that ‘[b]usiness enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and address adverse human rights impacts with which they are involved’.Footnote 3 Pillar III provides that in cases where human rights abuses arise from business operations, victims of human rights abuse should have access to adequate remedies.Footnote 4
To understand how the UNGPs can be localized, this paper engages with international relations scholarship on norm diffusion, especially on how global norms are reframed and re-interpreted for the benefit of local audiences through a process of localization. In doing so, it uses Pillar II of the UNGPs as an example of a global norm that promotes a corporate responsibility to respect human rights (CR2R). The dominant interpretation of the CR2R norm is that corporations have a negative responsibility not to abuse human rights but not a positive obligation to promote them. This paper argues that when the CR2R is localized in Africa and reframed through African norms, it gives birth to a congruent normative regime that prescribes both positive and negative obligations for multi-national corporations (MNCs).
To illustrate a localization process, I use an African norm – Ubuntu, succinctly and laconically expressed as ‘I am because you are’ and its values which include humanness, sharing, respect for human dignity, interdependence, and interconnectivity – to demonstrate how the CR2R norm can be locally reframed to produce a congruent normative regime capable of implementation in Africa. Seen through Ubuntu, a philosophy of mutual and communal care between individuals, and within the community, CR2R can be re-interpreted to make it locally relevant and to reflect sensibilities to the exploitative history of MNCs and the resulting economic under-development in Africa. This re-interpretation adds to appreciating the potentially wider normative scope of the CR2R norm than is conceivable within the dominant interpretational framework. The over-arching purpose of this exercise is twofold. First, it seeks to explore a mode of analysis through which the CR2R norm can gain local legitimacy among all actors, mainly host institutions such as policymakers, legislators, the justice system and enforcement organs, and local communities in Africa. Second, it proposes ways to re-order the economic imbalance that a dominant interpretation of the CR2R norm perpetuates in Third World countries.
This paper is divided into six sections. Section II examines the concept of norms and how they spread – norm diffusion. It identifies a congruence theory that explains how local actors, through a process of localization, reformulate or frame global norms to fit into prior local norms and ideas. This theory justifies interpreting the CR2R through Ubuntu to make it normatively acceptable through adaptation to elicit support from Africans. To understand the CR2R normative framework vis-à-vis Ubuntu, s ection III explains the dominant interpretation of CR2R in terms of its prescription that MNCs should not cause or contribute to human rights abuse. This negative responsibility of MNCs has drawn criticism from scholars who believe MNCs should also have a positive obligation to promote human rights. As a first step in the localization process to remove the CR2R weakness, s ection IV examines a social norm in Africa – Ubuntu. It describes the normative scope of Ubuntu as one that prescribes a negative and positive obligation for members of society to respect and promote the well-being of one another based on tenets of humanness, human dignity, interdependence and interconnectivity. It thus appears that CR2R’s negative responsibility does not align with Ubuntu’s, which encompasses both negative and positive responsibilities. Considering this incongruence, it remains difficult to see how MNCs can receive societal approval based on meeting a negative responsibility alone. To find congruence between both norms, section V uses the localization technique discussed in section II to reframe the normative contours of the CR2R norm for the benefit of local communities in Africa. It argues that this reframing induces the legitimacy of MNCs’ activities and fosters socio-economic development in Africa. Section VI then examines how to use existing channels – company policies, legal interpretations, and regional policy-led efforts – to operationalize an Ubuntu-based CR2R norm. The argument is that Africa has abundant channels to implement and enforce a congruent version of the CR2R that responds to the history of MNCs’ human rights abuse and the socio-economic realities of the continent.
II. Norms and Their Diffusion
A norm is a ‘standard of appropriate behavior for actors with a given identity’.Footnote 5 Checkel defines norms as ‘shared expectations about appropriate behavior held by a collectivity of actors’.Footnote 6 These definitions reflect norms within a reference social group, generally referred to as social norms.Footnote 7 For a norm to be social, it must be shared by other people and partly sustained by their approval or disapproval.Footnote 8 Social norms perform various functions in societies. For example, they are used to ‘make demands, rally support, justify action, ascribe responsibility, and assess the praiseworthy or blameworthy character of an action’.Footnote 9 In international law, social norms provide solutions to coordination problems, reduce transaction costs, and provide a language and grammar of international politics.Footnote 10 However, social norms differ from rules, legal norms or maxims.Footnote 11 James Fearon explains that while rules take the form ‘Do X to get Y’,Footnote 12 social norms take a different form: ‘Good people do X’.Footnote 13 In effect, while outcomes motivate compliance with legal norms, social norm observance is usually influenced by emotion.Footnote 14
International relations scholars, including Finnemore and Sikkink, have studied how norms develop using a norm cycle theory.Footnote 15 However, their account does not explain how norms spread from one place to another – norm diffusion. Amitav Acharya fills this gap by studying the causal mechanisms and processes through which norms and ideas spread.Footnote 16 He examines a congruence theory to shed light on norm diffusion. A congruence theory investigates the role of domestic political, organizational and cultural variables in conditioning the reception of new global norms.Footnote 17 This theory focuses on the domestic reception of global norms – the cultural fit (or congruence) between existing local cultural norms with an internationally developed norm.Footnote 18 The hypothesis is that local audiences will be likely to accept a global norm if it culturally fits into their pre-existing local norm.
Acharya introduces concepts like localization in the process of norm congruence.Footnote 19 He defines localization as ‘the active construction (through discourse, framing, grafting, and cultural selection) of foreign ideas by local actors, which results in the former developing significant congruence with local beliefs and practices’.Footnote 20 Localization is a systematic and dynamic process where existential compatibility between local norms and foreign norms is prioritized for norm adaptability.Footnote 21 The prior existence of a local norm in a similar issue area as that of a foreign norm makes it easier for local actors to subject the foreign norm to some pruning, adjustments, framing and grafting to fit into a specific cultural and socio-economic context.Footnote 22 In other words, without losing its attributes, the foreign norm is adapted into a cultural, local and particular context without the local community losing its identity.Footnote 23 In Bosch’s words, the end product is that ‘the foreign culture gradually blend[s] with the ancient native one so as to form a novel, harmonious entity, giving birth eventually to a higher type of civilization than that of the native community in its original state’.Footnote 24
Localization progresses in four stages. The first stage (pre-localization) occurs when local actors resist new external norms because of doubts about their application and utility and the fear that the norm may undermine existing local identity, beliefs and practices. The second stage (entrepreneurship and framing) occurs when local actors re-interpret a foreign external norm in a manner that brings out its value to the local audience. The third stage (grafting and pruning) occurs when both norms (local and foreign) are adjusted and reconstructed to accommodate each other, synergistically operating on a common ground for the benefit of the local audience. The last stage (amplification and ‘universalization’) occurs when new instruments and practices are established from the synergistic and mutual normative framework between local and foreign norms in which local influence remains dominant and visible.Footnote 25
Gaby Aguilar notes that localization is a ‘strategic framework for prompting the normative development of human rights from the bottom up’.Footnote 26 It is a process where research recognizes the local need for human rights to inspire the re-interpretation or elaboration of human rights. Koen De Feyter also notes that localization ‘implies taking human rights needs as formulated by local people (in response to the impact of economic globalization in their lives) as the starting point for both the further interpretation and elaboration of human rights norms and the development of human rights action, at all levels, ranging from domestic to global’.Footnote 27 Zimmermann concludes that ‘… localization is at least recognized as having the potential to produce outcomes of a more legitimate, more stable, and locally more appropriate kind’.Footnote 28
Against this background, it is important to illustrate the workings of a congruent theory within the business and human rights context. The next section examines the CR2R norm, especially its normative prescription that MNCs only have a negative responsibility to respect human rights and the criticisms that have trailed the norm. The ultimate aim is to make a case for a congruent normative regime that considers the adaptability of the CR2R norm to a local norm in Africa that goes beyond a negative responsibility to a positive obligation to promote human rights.
III. The Corporate Responsibility to Respect Human Rights as a Global Norm
The UNGPs embody the CR2R norm in its Pillar II. As indicated in the Introduction, the principle demands that corporations respect human rights, not because of any legal obligation but because it is a social norm.Footnote 29 The normative influence of the UNGPs and the UN Global Compact – the world’s largest corporate engagement platform – both promoted by John Ruggie, contributed to the evolution of the CR2R as a social norm.Footnote 30 Since then, the CR2R norm has been promoted by various global platforms and institutions, including the Organization for Economic Co-operation and Development (OECD),Footnote 31 the International Bar Association (IBA),Footnote 32 and the International Federation of Association Football (FIFA).Footnote 33
Unlike Pillar I, which reiterates states’ obligations in international human rights law, Pillar II does not create legal liability for MNCs because legal liability issues continue to be defined by national and international law.Footnote 34 Pillar II only subjects corporations to the court of public opinion.Footnote 35 In other words, corporations are responsible for respecting human rights, not because of any binding international obligation, but because this is what society expects from them.Footnote 36 MNCs are rewarded with a social licence to operate if they meet this expectation.Footnote 37 In effect, Pillar II is based on the prevailing social norm that corporations should avoid infringing on human rights (‘do no harm’) in their activities.Footnote 38 However, this does not prevent them from undertaking other (voluntary) activities to promote human rights.
Although independent, Pillar II complements Pillar I, which relates to states’ duty to protect human rights, and Pillar III, which relates to the provision of effective remedies to those harmed by business activities. Interpreting the UNGPs as a whole, Pillars I and II contain normative elements that show the interaction between a social norm and the legal obligations of states in international law.Footnote 39 For example, Principle 3 of the UNGPs provides that states should provide guidance on how businesses can respect human rights and ensure that their laws do not constrain corporations from operationalizing the CR2R norm. Principles 4, 5 and 6 also prescribe that state-owned enterprises (SOEs) should respect human rights when entering into business relationships with MNCs.
These principles show that although Pillar II is a social norm, it directly influences legal norms. For example, most states’ human rights due diligence (HRDD) legislation mirrors Pillar II’s provisions.Footnote 40 Emerging domestic HRDD legislation demonstrates the influence of the CR2R as a social norm, being a source of, and influence on, legal norms.Footnote 41 However, I heed Surya Deva’s warning that ‘[a]lthough the UNGPs should be understood as a coherent whole and there are important interlinkages between Pillars I and II, the two pillars should not end up becoming one’.Footnote 42 Therefore, this paper focuses on the social normative aspects of the CR2R norm.
Notwithstanding the CR2R norm’s global acceptance and uptake, it has been criticized by some scholars that its scope is not broad enough, as it only prescribes a negative responsibility for corporations to prevent human rights abuse through their actions or relationships with third parties. For example, David Bilchitz argues that the CR2R norm should also include a positive obligation to fulfil human rights – that is, to contribute to the realization of fundamental human rights.Footnote 43 He argues that the failure of the UN Special Representative of the Secretary-General (SRSG) to express the CR2R norm in positive terms makes the UNGPs’ framework ‘fundamentally incomplete’.Footnote 44 Other scholars, like Florian Wettstein,Footnote 45 Denis ArnoldFootnote 46 and Wesley Cragg,Footnote 47 maintain the same position. Wettstein argues that MNCs should not merely have a ‘minimalist’ obligation not to infringe on human rights. They should have obligations to take proactive and positive steps toward protecting and realizing human rights.Footnote 48 Arnold also says that the content of the CR2R norm is vague because it does not fully set out the rights of MNCs in cases where state laws do not protect human rights.Footnote 49 He thinks that the tripartite pillars of the UNGPs should be modified to include MNCs’ obligation to promote basic rights. In Cragg’s view, the CR2R norm is intellectually unpersuasive because it is not based on any moral or ethical foundation.Footnote 50 Instead, it appeals to the self-interest of MNCs. According to him, MNCs should fulfil human rights not because of their self-interest but because of the intrinsic moral and ethical value of doing so.
These critiques have a common theme: the CR2R norm lacks an ethical and moral foundation to compel MNCs to prevent abuse and promote human rights. On this count, Deva insists that MNCs should ‘comply with basic moral and legal norms of society in which they operate, for not doing so will lead to chaos and instability’.Footnote 51 Thus, it is evident that given the CR2R norm in its current formulation, MNCs bear no positive obligation to promote human rights as part of their exploitation of resources in host communities. Given this, I propose to utilize the Ubuntu concept to integrate the requisite ethical focus and obligation into the CR2R norm. In other words, I believe it is possible to achieve congruence between CR2R and Ubuntu in a way that makes the norms mutually reinforcing. This interpretative exercise can yield dividends that give teeth to CR2R to impel the desired responsible conduct in MNCs’ economic activities across Africa.
The next section examines the normative implications of Ubuntu, especially its positive and negative prescriptions for human rights. As stated in section II, when considered through the prism of norm localization, a global norm, through its adaptation to a local norm, produces legitimate, more stable, and locally more appropriate norms. Given the dominant, ‘minimalist’ interpretation of the CR2R norm, I offer Ubuntu as a complementary normative framework to produce a locally more appropriate interpretation of the CR2R that considers the circumstances of poverty, illiteracy and hunger under which MNCs operate in Africa.
IV. The African Norm of Ubuntu
Ubuntu is a pan-African philosophy that emphasizes being human through other people – relationality.Footnote 52 It is aptly reflected in the phrase, ‘I am because of who we all are’, or ‘I am human because I belong, I participate, I share’.Footnote 53 These translate into a popular Zulu saying, ‘Umuntu ngumuntu ngabantu’.Footnote 54 Ubuntu rests on such core values as humanness, caring for human beings, sharing, respect for human beings, respect for human dignity and human life, compassion, hospitality, interdependence, interconnectivity, and communalism.Footnote 55 These values reflect themes that include respect for persons, community, personhood and morality.Footnote 56 Regardless of social status, gender or race, persons are recognized, valued, and accepted for their own sake.Footnote 57 This is because a person is the cornerstone of a community.Footnote 58 Therefore, anything that undermines, hurts, threatens and destroys human beings is not accommodated in the Ubuntu worldview because community and personhood are intricately intertwined. If one person maltreats or disrespects another, other members of society can intervene or remind the perpetrator of the victim’s dignity and the necessity to uphold the value of a human being.Footnote 59
Ubuntu is expressed differently in African languages because its etymological root is found in African proverbs.Footnote 60 Nkonko Kamwangamalu, using a sociolinguistic approach, found that the Ubuntu concept is reflected in the lore of communities in various African countries. These include Gimuntu (giKwese, Angola); Bomoto (iBobangi, Congo); Umundu (Kikuya, Kenya); Vumuntu (ShiTsonga, Mozambique); and Bunmuntu (kiSukuma, Tanzania).Footnote 61 The concept is also expressed as Ubunwe (Kinyarwanda, Rwanda); Hunwe (Shona, Zimbabwe); umoja (Swahili, Kenya, Tanzania and Zanzibar); ubawananyina (Bemba, Zambia); pamodzi (Malawai); al takafol al egtma’ ey (Arabic, Egypt, Libya, Morocco, Tunisia, Sudan, Algeria); Ku tchew (Cameroon);Footnote 62 igwebuike (Igbo, Nigeria); Agbasowo la fin soya (Yoruba, Nigeria).Footnote 63 Contrary to the argument that Ubuntu originated from a traditional small-scale culture that bears no or little resemblance to contemporary African society,Footnote 64 these expansive literary interpretations of the norm show that the concept of Ubuntu finds expression in almost all African languages. They also demonstrate that the application of Ubuntu is not limited to Southern Africa.
Essentially identical to the practical implications of CR2R, Ubuntu has social and economic influence in Africa because it seeks to prevent economic relations that produce harmful poverty by depriving others of the essential means of survival.Footnote 65 It regards such essential means of survival, like land and labour, as universal communal resources that must be accessible to all community members.Footnote 66 Vilikazi refers to Ubuntuism as the foremost priority in all conduct.Footnote 67 According to him,
the value, dignity, safety, welfare, health, beauty, love, and development of the human being and respect for the human being are to come first, and should be promoted to the first rank before all other considerations, particularly, in our time, before economic, financial, and political factors are taken into consideration.Footnote 68
Contrary to the argument that Ubuntu is vague and incapable of providing a publicly justifiable rationale for decisions,Footnote 69 Ubuntu is a social norm promoting normative values that influence constitutional and human rights interpretations in some countries.Footnote 70 For example, the landmark case of S v Makwanyane in South Africa reinforces it as such.Footnote 71 The South African Constitutional Court declared capital punishment unconstitutional, among other grounds, because of its lack of compassion, respect for dignity, and solidarity. The Court noted that South African society must reflect Ubuntu values, and as capital punishment does not reflect them, it ought to be abolished.Footnote 72 Also, in Barkhuizen v Napier, the same Court, per Ngcobo J, held that Ubuntu influences South African public policy.Footnote 73 The Constitutional Court further recognizes Ubuntu as a standard to uphold in dealing with foreigners.Footnote 74 South African Courts have also linked Ubuntu to restorative justice and Truth and Reconciliation practices.Footnote 75 In a restorative justice context, Ubuntu emphasizes virtues that include forgiveness, reconciliation and truthfulness.Footnote 76
Beyond the judicial landscape in South Africa, Ubuntu has been judicially recognized and asserted in other African jurisdictions.Footnote 77 For example, the Uganda High Court in Solvatori Abuki v Attorney General confirmed the application of Ubuntu to communities in Uganda.Footnote 78 The Court noted that the concept of Ubuntu is not confined to South Africa or any other group, as all communities in Uganda embrace Ubuntu. Also, the Lesotho High Court in Mokoena v Mokoena Footnote 79 referred to Ubuntu in a case where the applicants sought to dispossess the widow of their deceased brother of the land he left behind under Lesotho’s customary law of succession. Emphasizing the importance of fostering solidarity and respect for human dignity, the Court held that:
[t]he widow has a customary law right to expect her late husband’s relatives to protect her and the property that her husband left her with … It is contrary to Basotho culture, good conscience and a sense of what is right in the African sense – that applicant should be attempting to deprive the widow of her house and arable lands (masimo). It is not botho or Ubuntu to dispossess a widow.Footnote 80
These decisions demonstrate that Ubuntu is an important norm in ordering social relationships in Africa. They also show that the influence of Ubuntu is not waning in the 21st century, as some scholars suggest.Footnote 81
Although some scholars argue that Ubuntu values are not unique and encourage collectivism at the expense of individual freedom,Footnote 82 other scholars have clarified the scope of Ubuntu through relational ethics.Footnote 83 For example, Thaddeus Metz argues that relationally, Ubuntu gives primacy to actions that honour and support friendly relationships.Footnote 84 Although Metz acknowledges that other western ethical philosophies require individuals to care for one another (ethics of care), he distinguishes them from Ubuntu. This is because notions of ‘identity’ and ‘solidarity’ are important in the construct of Ubuntu relational ethics. Metz argues that a western ‘ethics of care’ only incorporates elements of solidarity and not identity. While solidarity entails the willingness to help and care for others, identity entails sharing a way of life with others. Sharing identity means that individuals recognize themselves as part of a group and refer to themselves as (part of) a ‘we’ and not merely as an ‘I’.Footnote 85 To share an identity with others means engaging in cooperative endeavours without fear of punishment or a feeling of compulsion.
Therefore, on one end of the spectrum, Ubuntu relational ethics, unlike western liberal ideas of individualism and autonomy that rely on individuals’ intrinsic (internal) worth,Footnote 86 focus on interpersonal relationships sustained by communitarian values, ultimately defining personhood.Footnote 87 On the other side of the spectrum, Ubuntu ethics differs from ethics of care because of its emphasis on shared identity.Footnote 88 Metz summarizes the normative expectation under Ubuntu relational ethics as follows: ‘an action is right just insofar as it is a way of living harmoniously or prizing communal relationships, ones in which people identify with each other and exhibit solidarity with one another; otherwise, an action is wrong’.Footnote 89
Ubuntu also bears a mark on human rights and constitutional law scholarship besides its legal and ethical construct. For example, Ubuntu is used to justify a constitutional interpretation of the human right to water in Namibia.Footnote 90 Ndjodi Ndeunyema argues that courts must purposively interpret the Namibian constitution to solve the water scarcity problems in Namibia, although this right is not included in the Namibian constitution. Using Ubuntu, he contends that the right to water could be implied by interpreting the right to life as stated in Article 6 of the Namibian constitution.Footnote 91 In Ndeunyema’s view, African normative values animate the foundational principles of the Namibian constitution. Therefore, a purposive interpretation of the constitution will include considerations of Ubuntu requiring the state to provide water to fulfil an aspect of its socio-economic obligations to its citizens.Footnote 92 In effect, Ndeunyema claims that the right to water is, impliedly, a socio-economic dimension of the right to life via Ubuntu. He suggests that Ubuntu is part of African customary law,Footnote 93 thus highlighting its normative influence on interpreting human rights and constitutional rights in Namibia (and clearly, elsewhere in Africa).
A summary of the key features of Ubuntu as a norm informs the following conclusions. First, Ubuntu speaks to human dignity as worthy of recognition towards individuals. Also, it abhors the economic deprivation and exploitation of individuals and communities. Similarly, it encourages cooperation to enhance mutual benefit in the utilization of economic resources of land and labour. Furthermore, its prescriptive nature as a relationship ethic emphasizes identity and solidarity, not merely caring for others. From a legal standpoint, Ubuntu has become an implicit source of law for interpreting and applying the generality of public legislation in various African states. In particular, it has begun to assume the status of a ‘grundnorm’ for validating both expressed and implied rules germane to the recognition, interpretation and enforcement of human rights.
Between the analysis of CR2R in section III and Ubuntu in section IV, it is evident that CR2R imposes a baseline precatory responsibility of ‘do no harm’ observance left to the decision of the individual corporate actor. In contrast, Ubuntu carries inherent compelling power and, thus, demands both positive and negative obligations of ‘do no harm’ and ‘do good’ from individuals. Consequently, regarding the need to achieve an effective regime of corporate regulation in Africa that accounts for the history of MNCs’ exploitation and resulting economic impoverishment in the continent, the global CR2R norm must, by the necessity of normative force and legitimacy, become congruent with Ubuntu. This does not only facilitate MNCs’ acceptance in African communities through a grant of social licence, but it also facilitates socio-economic development through the cooperation of local communities and MNCs. In this way, CR2R, as a global norm, is localized in its operation through a seamless adaption via the vehicle of Ubuntu. This reframing of CR2R is the subject of the next section.
V. Localizing the CR2R Norm – A Reframing Exercise
It is important first to concede that finding an exact Ubuntu vocabulary in the CR2R norm is almost impossible.Footnote 94 However, understanding that both the CR2R norm and Ubuntu seek to influence social conduct, this congruence can be established between both norms to benefit local African communities.Footnote 95 In sum, a localized CR2R combines the predominant negative responsibility that CR2R imposes with the positive obligations more explicitly stated and implied in the normative concept of Ubuntu.
According to Johann Broodryk, in Ubuntu terms, ‘respect’ for human rights is associated with ideas like commitment, dignity and care. Footnote 96 He emphasizes that ‘respect’ is the central theme in the Ubuntu worldview, and it governs relationships at every level of society because human existence depends on mutual goodwill and acceptance.Footnote 97 The relational explanation Broodryk offers implies, in terms of human rights founded in Ubuntu, that there is an obligation and commitment to care about others’ quality of life.
Thaddeus Metz affirms this deduction from Broodryk’s relational viewpoint by emphasizing that dignity, the foundation of most human rights claims, commands respect.Footnote 98 He is clear that the concept of dignity in Ubuntu transcends the Kantian philosophy’s meaning of dignity, which treats human beings as autonomous.Footnote 99 Instead, the basis of human dignity in Ubuntu is communality – human beings’ capacity to form communal relationships through identification and display of concrete acts of solidarity that ensure mutual benefit at interpersonal and community levels.Footnote 100 Consequently, human rights abuses, including slavery and forced labour, convert persons capable of being friendly into those that treat others as a means to an end, such as gaining power or wealth for themselves. Those subjected to such inhumane treatments are induced to hate and harbour ill will, all of which destroy the capacity for communal relationships.Footnote 101
In essence, the Ubuntu concept of respect entails empowering others to encourage them to actualize their capacity to create relationships and act in solidarity. Providing food, education, housing and health care are some examples Metz cites as empowerment forms.Footnote 102 These examples show that the definition of respect entails the promotion of human flourishing that contributes to socio-economic development in society. Metz classifies these actions as fulfilling positive rights because they require aiding deprived persons to fulfil the pillars of Ubuntu, which include communality and solidarity.Footnote 103
Therefore, it raises the question, what would a congruent CR2R and Ubuntu norm look like when reframed in the business and human rights context? The answer lies in the localization of the CR2R norm. An Ubuntu-inspired CR2R norm would stipulate that community members should help and defend one another in cases where anyone’s capacity to form communal relationships is threatened or abused.Footnote 104 Under this notion of the CR2R, MNCs will be required to avoid business practices that promote slavery (as it prevents people from forming communal relationships) and to promote socio-economic conditions that protect people from vulnerability to slavery. This implies responsibility and commitment, which carry positive and negative obligations.Footnote 105 Conscientious pursuit of this imprimatur would ensure that the profits of MNCs would also be used to the benefit of local communities by providing basic human necessities.Footnote 106 It would also reduce the inhumane exploitation of African markets by MNCs and commit them to support tangible individual welfare as part of the local community welfare.Footnote 107
Localized this way via Ubuntu, the UNGPs’ concept of respect is, arguably, rescued from its current ‘confusing’ and ‘deeply flawed’ status, as critics claim.Footnote 108 Also, it prevents capital flight from the Global South to the Global North, which is a contributor to under-development in Africa.Footnote 109 The UNGPs may have unwittingly legitimized capital flight because the CR2R norm’s baseline expectation impliedly means MNCs should not abuse human rights, but they can transfer wealth to home countries without any commitment to share with local communities. Therefore, giving CR2R this relational orientation impels MNCs to commit to promoting the socio-economic development of local communities ravaged by mass poverty, unemployment, illiteracy, hunger, marginalization, and the general lack of basic human survival resources.Footnote 110
My argument is not, by this, to impose an Ubuntu interpretation of CR2R on MNCs outside Africa. Instead, I argue that those operating on the continent accept and live by the principle of identifying with their host communities and societies regarding their economic welfare, including respect for their human dignity.Footnote 111 MNCs should see themselves as part of the African social groups that operate as the facilitators of economic profits within host communities.Footnote 112 In summary, combining the normative prescriptions of CR2R of negative responsibility with an Ubuntu frame of positive obligations impels MNCs to apply themselves actively to socio-economic development in their host African states and communities. In this sense, the otherwise discretionary CR2R norm could carry some traction to compel positive outcomes for African local communities.
What remains to be considered is how this novel normative orientation for CR2R can take root within Africa as an ethic of conduct that can be applied via judicial interpretation, corporate policies, and regional policy implementation. Section VI, next, considers the potential utilization of these avenues and channels to this end. To be clear, these channels are not exhaustive. Instead, they represent Ruggie’s belief that the BHR governance framework requires a smart mix of regulatory and voluntary approaches, ‘which do not by themselves create new legally binding obligations but derive normative force through their endorsement by states and support from other key stakeholders, including business itself’.Footnote 113
VI. Operationalizing a Congruent Ubuntu-CR2R norm
The localization of the CR2R norm, as explained above in section V, highlights the need to understand and appreciate relevant features of the socio-cultural context in which MNCs operate.Footnote 114 The goal must be to balance profit maximization and socio-economic development.Footnote 115 The channels through which this congruent obligation fostered by Ubuntu and the CR2R norm can be operationalized are discussed under the three headings I list below: company-led efforts, legal interpretations, and regional policy implementation.
Company-Led Efforts
Principle 16 of the UNGPs, which relates to the operational activities of MNCs, provides that MNCs should express their commitment to respect human rights through a policy statement. This provision allows MNCs to include context-specific human rights commitments that address their host communities’ concerns. Thus, as argued in this paper, Principle 16 offers an avenue for MNCs to express commitment to Ubuntu values in the various aspects of their activities as they affect human rights, the environment, and the socio-economic impacts and implications of their operations for their host communities.Footnote 116 When MNCs conscientiously embed Ubuntu in their operational policies, they set themselves on the path to obtaining meaningful social licences from host communities in Africa. In sum, MNCs’ CR2R statements within an Ubuntu framework would demonstrate their resolve to coexist amicably with their African host communities as partners in their socio-economic activities in these communities.Footnote 117
In relation to achieving the foregoing, a commitment to HRDD cannot be over-emphasized in an Ubuntu-influenced interpretation of the CR2R norm. To be clear, I am not proposing that companies should do more than what the HRDD framework under the CR2R norm suggests. Instead, they should commit to HRDD standards by paying attention to socio-cultural and economic differences in host communities.Footnote 118 This stance would ensure that MNCs operating in Africa can objectively assess and adopt unbiased attitudes regarding people’s rights, values, beliefs and property.Footnote 119 This commitment would ensure that they identify potential problems of socio-cultural clashes in their relations with their host communities. For example, in a study of the relationships of four MNCs with a local community in South Africa, it was discovered that the MNCs who partnered with the local community according to Ubuntu values integrated better with society than those with no such relationship or those who paid lip service.Footnote 120
Traditionally, MNCs use due diligence in business transactions involving mergers and acquisitions (M&A).Footnote 121 This is because merging two companies with different organizational cultures can generate internal rancour within the new company – a ‘we’ versus ‘they’ relationship.Footnote 122 The notion and process of merging two companies can be extrapolated to the relationship between host communities and MNCs. It stands to reason, therefore, that MNCs must consider how best to integrate into host communities to prevent living in a relationship of ostracism with them.Footnote 123 This paper demonstrates that one way to do this is through the congruence approach. This will foster harmonious co-existence between MNCs and host communities in Africa.
Legal Interpretations
The essence of my preceding discussion of the judicial recognition of the Ubuntu concept in South Africa, Uganda and Lesotho, is that to ignore its tenets in socio-cultural relations constitutes a justiciable cause of action. This disposition is growing in various jurisdictions.Footnote 124 Similarly, litigants before the Economic Community of West African States (ECOWAS) Court of Justice and the African Court on Human and Peoples’ Rights increasingly rely on Ubuntu for human rights claims (right to life).Footnote 125 Indeed, Ruggie agrees that non-compliance with the CR2R norm can make MNCs subject to the sanction of adverse public opinion or, in some cases, subject to a legal suit.Footnote 126 Apart from securing MNCs’ compliance with the CR2R norm in terms of its community mandates, the developing Ubuntu jurisprudence offers another means by which African courts can interpret the CR2R norm in Africa.Footnote 127
The normative influence of Ubuntu on CR2R as a source of law and its promotion via strategic litigation can also be advanced in terms of its human rights protection and promotion implications through relevant provisions under the African Charter on Human and Peoples’ Rights (The African Charter).Footnote 128 The African Charter is said to synthesize universal and African elements that balance the application of traditional African principles and modern principles of international law.Footnote 129 The Charter exemplifies a congruent theory’s practical workings because it combines the African tradition of communalism with international human rights norms.Footnote 130 In other words, rather than an outright rejection of universal human rights norms, the Charter contextualizes (localizes) them to suit the circumstances and sensibilities of Africans.Footnote 131
Through the Charter, an Ubuntu-influenced CR2R norm can be interpreted as a localized instrument. Unlike most human rights instruments that only impose civil and political obligations,Footnote 132 the Charter prescribes correlative rights and duties regarding social, economic and cultural matters for states and individuals (including corporations).Footnote 133 In addition, the Charter charges states and individuals to promote communal relationships in African societies.Footnote 134 The duties that individuals bear in relation to their community members are contained in Chapter II of the Charter. Articles 27–29 highlight the individual’s duty to place his physical and intellectual abilities at the service of society and to have regard for the rights of others.Footnote 135 They also refer to an individual’s duty to preserve and strengthen positive African values in his relations with other members of society and to promote society’s moral well-being.Footnote 136
The Charter’s provisions give normative recognition to an intertwining set of social relationships where all members, including corporations, must contribute meaningfully to socio-economic development across Africa. Indeed, the African Union Working Group noted that corporations and individuals have the same obligations under Articles 27–29 of the Charter.Footnote 137 Interpreting Article 27, the Working Group concluded that MNCs’ obligations under the Charter have a ‘clear legislative basis’. This is because Africans ‘do not see [MNCs] as legal artifacts but focus on human beings who preside over organizational activities …’.Footnote 138 From this premise, it stands to reason that litigants, civil society and advocacy groups can ground claims on African values, like Ubuntu, to argue that MNCs bear positive obligations to promote human rights. By framing claims in this manner, these actors would be acting as local agents in reframing and localizing the normative scope of CR2R in terms of its observance, implementation and enforcement in Africa.
Regional Policy Efforts
African policy efforts can also play an important role in operationalizing the CR2R norm through an Ubuntu lens.Footnote 139 In particular, the proposed African Union (AU) Policy on Business and Human Rights, which aims to make businesses more responsive to human rights,Footnote 140 is an essential contribution to the African business and human rights discourse. This policy document, an African Union soft law, offers another opportunity to push forward the localization of the CR2R norm, as advocated in this paper. First, the AU policy provides an opportunity to consult with local African communities on how to fashion socio-economic relationships with MNCs operating in Africa for mutual benefit. Furthermore, it is expected that the document would probably define what respect for human rights means to host African communities and how MNCs can meet societal expectations as major socio-economic actors in their host communities.Footnote 141
Second, the AU policy has the potential to interpret the CR2R norm to include Ubuntu-informed positive obligations. It could move the CR2R norm from ‘do no harm’ to ‘do good’ in Africa. This is not the first time a policy document from the AU has made such a recommendation. Article 24 of the Draft Pan-African Investment Code already provides that investors must comply with human rights and business ethics principles by supporting and taking steps to protect internationally recognized human rights and ensuring the equitable distribution of wealth derived from their investments.Footnote 142 The AU Policy on business and human rights could finally be formulated like the Pan-African Investment Code. Doing so would localize the normative scope of an emergent CR2R norm.
Another policy document from Africa that recognizes and explicitly builds on an Ubuntu value are South Africa’s King Reports on corporate governance.Footnote 143 The King IV Code, the latest version published in 2016, expressly states that:
[t]his idea of interdependency between organizations and society is supported by the African concept of Ubuntu or Botho … Ubuntu and Botho imply that there should be a common purpose to all human endeavours (including corporate endeavours), which is based on service to humanity. As a logical consequence of this interdependency, one person benefits by serving another. This is also true for a juristic person, which benefits itself by serving its own society of internal and external stakeholders, as well as the broader society.Footnote 144
The King IV Code is not restricted to listed companies. It also applies to unlisted entities as well as family and state/foreign-owned companies whose shares are not traded widely. The Code is described as ‘a homegrown solution by Africans for Africans’, and Ubuntu is described as the ‘philosophical golden thread that binds the content of the Code’.Footnote 145 Drawing from this template, corporate governance policies or legislation in African countries can be a means to incorporate Ubuntu values to shape corporate regulation in Africa, especially regarding human rights protection and responsible corporate management.Footnote 146
In sum, Ubuntu holds the potential of an efficacious tool for socio-economic transformation that MNCs, local communities and African regional bodies can collaboratively explore to improve the normative scope and obligatory imprimatur of the CR2R norm. The ultimate framework must remain focused on strong business ethics to minimize the negative impacts of business practices, enhance MNCs’ potential to live by human rights standards, promote social justice, and share the resulting benefits with local communities as co-habitants of the lands whose resources support the economic outputs. To enhance its prospect of gaining legitimacy and influence over corporate conduct in Africa, the CR2R norm must be localized and moored to the socio-cultural languages of the people. For Africa, that language is embedded within Ubuntu.
VII. Conclusion
Utilizing the international relations theory of norm diffusion, I have shown that the concept of Ubuntu is an appropriate vehicle for localizing and supporting the CR2R norm to protect and promote human rights in the course of MNCs’ exploration in African host communities. It was iterated that the appropriateness of Ubuntu for this exercise stems from its encapsulation of values that express the need for cooperative commitment from individuals, communities and legal entities to work together in using the fruits of their endeavours to uphold human dignity, relate in acknowledgment of interdependence, interconnectivity, and communalism, and respect for human rights. As such, Ubuntu and the CR2R norm are similar in two ways. First, Ubuntu, like the CR2R norm, prescribes normative conduct for corporate behaviour. Second, Ubuntu, like the CR2R norm, recognizes the interconnectivity between corporations and the society in which they operate. However, Ubuntu goes beyond the CR2R norm’s baseline expectation to ‘do no harm’. Therefore, an Ubuntu-influenced interpretation of the CR2R norm helps to fill the positive obligation vacuum presently lacking in the CR2R norm interpretation for the benefit of Africans. It also provides a legitimate normative platform to implement the CR2R norm in Africa. This way, MNCs are brought into the regime of relational ethics that defines and directs socio-economic inter-relationships in the communities where their investment activities occur. The hope is that under this regime, Africans can be better respected as humans whose dignity is equal to that of humans elsewhere, and whose need for the basics of food, shelter and clothing can be more adequately responded to by those who have better means to exploit their natural and other resources than they can marshall.
Acknowledgements
The author wishes to thank Sara Seck, anonymous reviewers, David Dzidzornu, and the editorial board of the Business and Human Rights Journal, especially Florian Wettstein, for their support throughout the writing and editorial stages of this article. All errors and omissions are entirely mine.
Conflicts of interest
The author declares none.
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